Kohberger defense: ‘Majority’ of death penalty cases overturned. What’s data say?

The public defense for Idaho murder suspect Bryan Kohberger recently asked that his Boise trial be postponed, citing highly prejudicial publicity for their client and insufficient time to prepare. 

“While prompt administration of justice is important — to both the state and Mr. Kohberger — the constitutional guarantee of a fair trial outweighs modest delay,” lead defense attorney Anne Taylor wrote. “And, because the majority of cases ending in the death penalty are later overturned for error, the public interest lies in ensuring a fair trial in the first instance.”

If Kohberger, 30, a former Ph.D. student of criminal justice and criminology at Washington State University, is found guilty on four counts of first-degree murder, prosecutors intend to seek the death penalty. 

His much anticipated trial at the Ada County Courthouse is scheduled to start in early August — more than 2 1/2 years after the November 2022 stabbing deaths of four University of Idaho undergraduate students in Moscow. 

Judge Steven Hippler, of Idaho’s 4th Judicial District in Ada County, has yet to rule on the defense’s request for a continuance. But have the majority of death sentences in the U.S. really been overturned on appeal over legal or procedural mistakes? 

The seminal report on the issue — produced by the law school at Columbia University — found a 68% reversal rate nationally of death penalty convictions because of serious error, but that report is decades old, having come out in 2000. 

The study reviewed more than 5,700 cases across the U.S. between 1973 and 1995, and on average death sentences were thrown out in nearly seven out of every 10 convictions because of a reversible error. 

The most common errors the study found were incompetent defense attorneys, faulty juror instructions and prosecutorial misconduct, which included incidents of evidence suppression of innocence. 

“The death penalty system is one in which lives and public order are at stake, yet for decades has been fraught with more mistakes than we would tolerate in far less important activities,” the study’s lead author, James Liebman, said in a statement when it was released 25 years ago. 

Idaho ranked second for how often homicides led to death sentences, and also landed in the top 10 states for its overall error rate of 82%, according to the study. Reversals entailed direct appeals, state post-conviction proceedings and federal review.